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Herring messing with Texas: AG files brief in abortion ban case

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mark herring
Mark Herring

What a lot of us are hoping doesn’t happen next week is that Virginia doesn’t vote itself into becoming Texas.

In the here and now, Attorney General Mark Herring is fighting back, filing an amicus brief in front of the U.S. Supreme Court in the case of the Texas abotion ban.

Herring joined 24 state attorneys general in filing an amicus brief with the Supreme Court in the cases of United States of America v. State of Texas et al., and Whole Woman’s Health et al. v. Jackson et al. that calls on the Court to rule that challenges brought by the United States and Texas abortion providers to S.B. 8 can go forward.

The brief argues that Texas should not be allowed to evade judicial review of its unconstitutional ban by purporting to grant enforcement authority solely to private bounty-hunters. The brief further argues that S.B. 8 is blatantly unconstitutional under binding Supreme Court precedent and is causing significant harm to patients in and outside of Texas.

“The Supreme Court must do the right thing and uphold a fifty-year precedent protecting the constitutional right to an abortion by striking down Texas’ blatantly unconstitutional abortion ban once and for all,” Herring said. “Since September, when this illegal law first went into effect, women in Texas and around the country have suffered, having their rights infringed upon and their most important and personal health decisions impacted. Texas cannot be allowed to get away with passing a disgusting unconstitutional abortion ban that not only rewards vigilantes with bounties for turning in women and doctors, but was written explicitly to avoid any kind of judicial review.

“From the outset, I have been in court fighting back against this illegal abortion ban, and I want to assure all Virginians that I will never back down. I will always stand with Virginia women and do everything I can to protect the constitutional right to an abortion,” Herring said.

According to the brief, S.B. 8 represents a “new and dangerous frontier” when it comes to state legislatures restricting or eliminating abortion access. As the attorneys general have argued, S.B. 8 not only imposes a ban on almost all abortions in Texas in open disregard of the Supreme Court’s longstanding precedent, but also attempts to thwart judicial review and insulate Texas from accountability by purporting to create only a private enforcement scheme.

S.B. 8 requires Texas courts to award at least $10,000 as well as injunctive relief to claimants who bring cases against anyone who provides an abortion in violation of S.B. 8 and those who “aid or abet” such constitutionally protected care. As such, the law threatens potential liability for anyone who so much as gives a patient a ride to an abortion provider.

Today, as a result of the ban, abortion is completely unavailable to many people in Texas who do not even know they are pregnant yet. These patients now must travel out of state, which makes abortion for many people too difficult, too time-intensive, and too costly. Consequently, many will now be forced to delay care or carry unwanted pregnancies to term, resulting in negative health and socioeconomic consequences for both them and their children.

The harms caused by S.B. 8 are rippling well beyond Texas into other states, as people are forced to seek care elsewhere, in many places overwhelming capacity and threatening residents’ access to care. In New Mexico, in particular, all abortion clinics were reportedly booked for weeks just one day after S.B. 8 went into effect. And patients traveling from Texas have accounted for close to a third of the total abortion patients in New Mexico since Sept. 1.

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